Research On The Period Of Rescission Right Of Contract

To exercise the rescission right of contract is of vital importance to the parties,but the regulation about the period for exercising is not clear.Article 15 of the commercial housing sales contracts judicial interpretation is clear about this problem.While,people have different voice on whether other contract dispute could apply to this provision.Besides,when obligee exercise the right after the limitation of action,there may be a conflict between the rescission right of contract and the limitation of action.According to these questions,this article intends to make a systematic summary about the the period of rescission right of contract,hoping that can be benefit to the judicial practice.This article includes four parts:Part one is about a summary of possible difficulties in judicial practice through the case analysis.This part means to find out judgment thoughts about similar cases,which is mainly from the judicial practice according to the vacancy of article 95 in "contract law".In judicial practice, application to the law across the court is various,which is different in whether apply to article 15 of the commercial housing sales contracts judicial interpretation or not.Although the supreme people’s court civil judgment which plays a guiding role in the judicial practice has excluded directly applying to article 15,judgment in other courts is not according to this.And different courts have different judgments,even the court of first instance and second instance court have different judgments referring to the same case.Part two is about basic problems of the rescission right of contract,which includes the historical evolution, legal attribute, causes and legal effect.Here is a summary about the main ideas.This part is for the consideration of the paper system and the discussion below.Because of the law attribute,it has powerful effect,which determines that when exercising the rescission right of contract, restriction is necessarily required.In the judicial practice,the determination on the period of the rescission right of contract is different,so it is necessary to discuss the reasons for it.The legal effect of the rescission right is also a more controversial issue, and to have a further discussion,the basis of the article’s argument must be clear.Part three is a summary about theperiod of rescission right of contract both in the legislation and judicial practice.There are mainly two legislation about this,which is article 95 in the "contract law" and article 15 of the commercial housing sales contracts judicial interpretation.While, on the condition that no agreement or the law,there is nothing to do in the judicial practice.Views on the vacancy of article 95 in "contract law" are various.The first view is that article 15 is a supplement to the vacancy.The second view is that parties can freely decide the period of rescission right of contract according to article 95.While the third view is that when deciding the period of rescission right of contract,liability for breach of contract limited by the time should be taken into consideration,which is Germany’s legislative model.Part four is a determination on the period of rescission right of contract.It has a powerful effect,so directly application to article 15 just because of the vacancy is not a good method.Of course,no limitation is not permitted either.Other method can be found out apart from a specific time limitation,and the system of power failure is a good method to solve this problem. Based on principle of good faith, this system can be explained into it and applied to the judicial practice.